Walker-Smith v. Colvin

DENNICE WALKER-SMITH, on behalf of her minor child, A.D.W., Plaintiff,v.CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
REVERSE OR REMAND AND DEFENDANT'S MOTION TO AFFIRM THE
DECISION OF THE COMMISSIONER

F.
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

This is
an appeal of a final decision of the Commissioner of the
Social Security Administration (“SSA”) denying
the application of plaintiff Dennice Walker-Smith for
supplemental security income (“SSI”) benefits on
behalf of her minor daughter, A.D.W. Plaintiff appeals the
denial of her application on the ground that the decision is
not supported by substantial evidence as required by 42
U.S.C. § 405(g). Specifically, plaintiff contends that
the administrative law judge (“ALJ”) failed to
adequately develop the record, erroneously found A.D.W.'s
learning and intellectual impairments to be non-severe,
failed to make a full analysis of all material information,
and inappropriately substituted his judgment for that of a
medical professional. She further contends that remand is
warranted in order to permit the ALJ to consider new and
material evidence that supports a finding of disability.

Pending
before the Court are plaintiff's motion to reverse or
remand the decision of the Commissioner and defendant's
motion to affirm the decision of the Commissioner. For the
reasons stated below, the decision will be affirmed, and
plaintiff's motion to reverse or remand will be denied.

I.
Background

A.
Factual Background

Dennice
Walker-Smith brings this action on behalf of her minor child,
A.D.W. A.D.W., the claimant, was born in August 2001. (A.R.
19). She lives with her mother and brother in Dorchester,
Massachusetts. (A.R. 410).

1.
Asthma

A.D.W.
has persistent asthma. (A.R. 480). Walker-Smith estimates
that she started experiencing symptoms in 2008. (A.R. 389).
Over the years, she has been prescribed Flovent, Proair,
Advair, Aerochamber, and Albuterol to control those symptoms.
(A.R. 489).

A.D.W.'s
asthma symptoms began to worsen in 2011. (Id.).
Between February 2011 and October 2011, she visited the
emergency room five times, complaining of asthma-related
issues. (Id.). From October 8 to 11, 2011, she was
admitted to the Boston Medical Center Intensive Care Unit
with severe respiratory distress, and was diagnosed with
status asthmaticus. (A.R. 309). In October 2012, A.D.W.
visited the Codman Square Health Center Urgent Care Clinic
and was prescribed prednisone. (A.R. 430).

In
April 2013, Lucy Stone, A.D.W.'s fifth-grade teacher,
completed a “Teacher Questionnaire” provided by
the SSA in connection with this application. (A.R. 444, 446).
The questionnaire instructed that the form should be
completed by the person most familiar with A.D.W.'s
overall functioning. (Id.). Stone reported that,
although the medical information states that A.D.W. has
asthma, she had “never observed any symptoms or
effects.” (A.R. 450).

On
August 21, 2013, A.D.W. was examined by Hong-Phuong Vo, M.D.,
of the Pediatric Pulmonology/Allergy Clinic at Boston Medical
Center for the purpose of completing a Childhood Disability
Evaluation Form in connection with this application. (A.R.
481). Dr. Vo found that A.D.W. had a marked limitation in the
“health and physical well-being” domain, and
explained that she “had three asthma exacerbations in
the past 2 months requiring urgent care and systemic
steroid.” (A.R. 483). She found that A.D.W. had less
than marked or no limitations in the other domains. (A.R.
482-83). Despite finding that A.D.W. had a marked limitation
in only one domain, she checked a box indicating that
A.D.W.'s impairment or combination of impairments
functionally equals the listing due to “[m]arked
limitation in two domains.” (A.R. 484).

2.
Obesity

A.D.W.
has obesity. In January 2010, A.D.W. weighed 141 pounds and
had a body mass index (“BMI”) of 32.3. (A.R.
325). By May 2014, her weight had increased to 238 pounds and
her BMI to 41. (A.R. 486). In July 2014, Walker-Smith
testified that A.D.W. weighed 249 pounds. (A.R. 55).

3.
Learning Disability and Borderline Intellectual
Functioning

A.D.W.
has a learning disability and borderline intellectual
functioning. (A.R. 455). Tests indicate that A.D.W. has a
full-scale IQ, ability to reason non-verbally, and ability to
hold information and manipulate it in her head in the
borderline range, as well as ability to reason with language
in the low-average range. (A.R. 455). In many other areas,
she tests below average. (Id.). When A.D.W. was six
years old, her overall score on the Wechsler Intelligence
Scale for Children was in the 9th percentile, placing her in
the low average range of intellectual abilities. (A.R. 267).

On
January 25, 2012, A.D.W. underwent a Consultative Examination
with Emrie Cohen, M.A., a licensed clinical psychologist, in
connection with this application. Cohen assessed A.D.W.'S
I.Q. at 75, in the 5th percentile, and her reading, spelling,
and arithmetic skills at the second- or third-grade level.
(A.R. 318). She found that A.D.W. has a mild reading
disorder, mild impairment in written expression, definite
mathematics disorder, and borderline intellectual
functioning. (A.R. 320).

In
light of her learning difficulties, in the first grade A.D.W.
was placed into a small, substantially separate classroom for
children with special needs. (A.R. 263). She also repeated
the fifth grade. (A.R. 455). Since her application date,
A.D.W. has received special education services and
Individualized Education Programs (IEPs) in school. (A.R.
455).

School
records indicate that A.D.W. is a diligent student despite
learning difficulties. On the April 2013 Teacher
Questionnaire, Stone stated that A.D.W. “appears to
function at a slightly slower processing pace than her peers,
” “acts very young for her age, ” and
“has a great deal of difficulty remembering to go to
the office to use her inhaler before gym class.” (A.R.
445). She also found that A.D.W. “works very
methodically and deliberately on tests, using all
the time allowed and showing amazing focus and stamina until
the last minute.” (A.R. 446). She assessed that
“on the whole, in Gen[eral] Ed[ucation] classrooms
[A.D.W.] is able to apply herself to tasks with appropriate
attention.” (Id.). Her IEP for the 2013-14
school year states that she is a “happy student who is
eager to learn.” (A.R. 455).

A.D.W.'s
school records also reflect persistent problems with
attendance. When she was in first grade, a school
psychologist reported that A.D.W.'s teacher was
“concerned about her poor attendance” which
impeded her ability to “make effective academic
pro[g]ress.” (A.R. 264). Her 2013-14 IEP states that
she “has had many absences this year, [which have] hurt
her progress. When she is present in school, she is capable
of learning and retaining new information.”
(Id.). Stone reported that “[A.D.W.]'s
attendance is abysmal with almost 50 days of absences and 50
days of tardies . . . it is very unclear why she misses
school because sometimes it is simply because her mom
doesn't make her attend when menstruating and [A.D.W.]
has told me no one makes her attend if she doesn't feel
like it.” (A.R. 449-450).

4.
State-Agency Clinical Assessments

In
early 2012, Rosario Palmeri, M.D., a state-agency
pediatrician, and Ronald Nappi, Ed.D., a state-agency
psychologist, conducted a review of A.D.W.'s medical
records in connection with her initial application. (A.R.
92-100). They found that A.D.W.'s asthma, borderline
intellectual functioning, and learning disorder constituted
severe impairments. (A.R. 96). They further found that A.D.W.
had a marked limitation in the domain of “health and
physical well-being” due to her severe asthma, but that
she had less than marked or no limitations in the other
domains. (A.R. 97-98). Under the domain of “acquiring
and using information, ” the clinicians explained that
A.D.W. scored in the borderline range of intelligence, but
that the results of her testing “may have been impacted
by her asthmatic condition and by days of missed school due
to physical [sic].” (A.R. 97).

In
September 2012, Sheela Gurbani, M.D., a state-agency
pediatrician, and Menachem Kasdan, Ed.D, a state-agency
psychologist, conducted a similar review in connection with
Walker-Smith's request for reconsideration. (A.R.
102-11). Those clinicians found the same severe impairments
as Palmeri and Nappi, and found that A.D.W.'s obesity
also constituted a severe impairment. (A.R. 107). Like
Palmeri and Nappi, as well as Dr. Vo, Gurbani and Kasdan
found that A.D.W. had a marked limitation in the domain of
“health and physical well-being” due to her
asthma, but less than marked or no limitations in all other
domains. (A.R. 107-08).

Upon
reviewing the evidence, the four state-agency clinicians
opined that A.D.W.'s impairments did not meet, medically
equal, or functionally equal either listing 112.05 concerning
intellectual impairment, or listing 103.03 concerning asthma.
(A.R. 97, 98, 107, 109). All four ultimately determined that
A.D.W. was not disabled. (A.R. 99, 109).

5.
Function Reports

Walker-Smith
submitted two Function Reports in connection with the
application. (A.R. 200, 212). On the first report, she
indicated that A.D.W.'s physical abilities as well as
ability to communicate, to take care of her personal needs,
and pay attention and stick with a task were not limited.
(A.R. 201-08). She indicated that A.D.W.'s ability to
progress in learning was limited. In the box provided to
explain those limitations, Walker-Smith wrote only that
“[A.D.W.] need[s] help with everything.” (A.R.
204).

On the
second report, when asked to explain anything the agency
should know about A.D.W.'s ability to communicate,
Walker-Smith wrote that “[A.D.W.] has severe asthma
which is what I signed her up for.” (A.R. 215).
Walker-Smith indicated that A.D.W. does not complete her
homework or finish things she starts, explaining ...

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